¶1Opinion,
¶2The learned judge below evidently mistook what was, at most, a trespass, for malicious mischief. The defendants were indicted under the act of March 23, 1865, which provides:
¶3“ That if any person or persons, from and after the passage of this act, shall maliciously or wantonly break or throw down *60any post and rail or other fence erected for the enclosure of land, or shall carry away, break, or destroy any post, rail, or other material of which such fence was built, enclosing any lots or fields within the commonwealth, such person or persons so offending shall be guilty of a misdemeanor,” etc.
¶4Upon the trial below, the defendant Ellen Drass being on the stand, the defence offered to prove by her “ that they the defendants did not tear or take down the fence wantonly, nor wilfully, nor maliciously; but in justification of their right to go out and in on their own property.” The second specification discloses a somewhat similar offer. The learned district attorney objected to the admission of this evidence, on the ground “ that evidence of justification cannot be admitted, the defendants not undertaking to deny the offence as made out bj’ the commonwealth’s witnesses ; in fact, admitting it by their offer to justify.” The learned judge sustained the objection.
¶5I do not understand the offer to admit the commonwealth’s case. It admits the taking down of the fence, but it does not admit that it was done “ maliciously or wantonly,” which was the gist of the commonwealth’s case. The mere act of tearing down a fence is not necessarily malicious or wanton. It may be done in the honest exercise of a right. Surely, if some one erects a fence which denies or obstructs my entrance to my house or grounds, I may remove it without subjecting myself to an indictment in the Quarter Sessions. Such an act lacks every element of malice or wantonness. Such appear to have been the facts in this case ; at least, it was so alleged by the defendants, and they were entitled to make such proof.
¶6We think it was error to instruct the jury that “this act of assembly was passed to meet precisely such cases as this,” etc. The case should have been submitted to the jury to find whether the act was malicious and wanton, or merely done in the exercise of a supposed legal right. In the one case, it is a crime; in the other, a trespass at most.
¶7All of the specifications of error are sustained
¶8Judgment reversed, and a venire facias de novo awarded.